June 17, 2010

VIctory in Kentucky Supreme Court!

I am thrilled to let you know that the Kentucky Supreme Court once again refused to advance the war on drugs to women's wombs and made clear that pregnant women, no less than other persons, are protected by the rule of law. By refusing to accept the prosecution's argument that the "unborn" should be legally disconnected from the pregnant women who carry them and treated as if they were separate legal persons, this decision protects the civil and reproductive rights and health of all women in Kentucky.

In this case, a pregnant woman was prosecuted in flagrant disregard for Kentucky law, embodied in its Maternal Health Act of 1992, and binding Kentucky Supreme Court precedent. NAPW worked extensively with the defendant's talented public defenders (including Jamesa Drake, who presented a brilliant oral argument) and many treatment, recovery, and health allies in the commonwealth. NAPW, with attorneys Allison Harris of Shearman & Sterling and Kentucky Attorney Michael Goodwin, filed an amicus brief to highlight the negative public health consequences that would arise if drug-using women were to be punished for becoming mothers. Twenty-five public health organizations, advocates, and experts were represented on our brief (see list below) and more than sixty were represented as amici in the case. Today's opinion reinforces the importance of Kentucky's public health approach to the issues of drug use and pregnancy, and the fact that prosecutors should not be allowed to legally separate the fetus from the pregnant woman who carries and nurtures it.

NAPW also worked with international human rights experts and organizations as well as leading bioethicists who filed amicus briefs opposing this misapplication of the criminal law to pregnant women, new mothers, and their children.

Your support enabled NAPW to organize more than 60 organizations (see full list of amicus below) to speak out against the prosecution of pregnant women and punitive policies that undermine the health of pregnant women, mothers, and babies. We hope that you will celebrate this victory that you helped to make possible, and continue to support our work on behalf of women in Kentucky and across the nation.

Carrie Bettinger-Lopez and Michael Jay O'Hara filed an amicus brief on behalf of the Anti-Sexism Committee of the National Lawyers Guild; Center for Reproductive Rights; Columbia Law School Human Rights Clinic; Columbia Law School Sexuality and Gender Law Clinic; Constitutional Litigation Clinic at Rutgers School of Law, Newark; Criminal Justice Clinic at Hofstra Law School; International Mental Disability Law Refor Project in the Justice Action Center at New York Law School; International Reproductive and Sexual Health Law Programme at the University of Toronto; Jamie O'Connell (University of California, Berkeley School of Law, International Human Rights Clinic); Justice Now; Leitner Center for International Law & Justice at Fordham Law School; Mindy Jane Roseman (Harvard Law School, Human Rights Program); and Southwest Women's Law Center.

Sheryl Snyder, Amy Cubbage, and Jill Morrison filed an amicus brief on behalf of Legal Momentum and National Women's Law Center. David Alan Friedman and William Ellis Sharp filed an amicus brief on behalf of the American Civil Liberties Union Foundation Reproductive Freedom Project and American Civil Liberties Union Of Kentucky.

June 10, 2010

The War on Drugs Coming to a Womb Near You

National Advocates for Pregnant Women (NAPW) works on behalf of all pregnant women including pregnant women who have been arrested and charged with child abuse or some other crime because they continued a pregnancy to term in spite of a drug problem. These pregnant women are particularly unpopular. Liked or disliked, misunderstood or understood, their cases have huge legal implications for all pregnant women- potentially setting devastating precedent that could establish special, separate legal rights for the fetus and the basis for punishing all pregnant women, including those who suffer miscarriages.

The good news is that a surprisingly broad and mainstream group of organizations oppose such arrests and prosecutions. Among these are the March of Dimes and the American Medical Association. They recognize that threatening women with arrest and frightening them away from treatment is bad for women and bad for babies. They understand that many of the women who come to police attention started to use drugs long before they became pregnant as way of numbing the pain of violence and other significant traumas.

Because prosecutions don’t actually protect children, and because the only way a woman who has a drug problem can be sure to avoid arrest is to have an abortion, no state legislature in the country has actually passed a law making it a crime for a woman with a drug problem to continue her pregnancy to term and give birth.

Even South Carolina’s state legislature refused to pass such a law. Unfortunately, however, activist judges on the South Carolina Supreme Court rewrote state law to permit the arrest of any pregnant woman who even “risks” harm to her viable fetus. For example, Cornelia Whitner gave birth to a perfectly healthy baby. The baby, however, tested positive for cocaine. Ms. Whitner was charged with child abuse based on the claims that a fetus is a child under state law. Although not a single residential treatment program designed to meet the needs of pregnant women existed in South Carolina at the time, Ms. Whitner pleaded guilty thinking it would help get her access to the treatment she needed. Instead of treatment Ms. Whitner got eight years in prison.

Regina McKnight, another South Carolina woman suffered a stillbirth. Although the stillbirth was the result of an infection unrelated to Ms. McKnight’s drug problem, she was charged with homicide by child abuse. Prosecutors in South Carolina knew that they could win a conviction for homicide simply by putting a low-income, African-American woman in front of a jury and telling them that this woman had used cocaine while pregnant. Ms. McKnight was convicted after only 15 minutes of deliberation and sentenced to twelve years in jail.

As of this writing, however, South Carolina still ranks number one in the country for the arrest of pregnant women and last in the amount of state dollars spent on drug treatment.

NAPW knows that many people who support the arrest of drug-using pregnant women make assumptions about them. They cannot see beyond the color of their skin, or the fact that they are poor and pregnant, or that the woman is a "drug-user." But those of us who work on behalf of “drug-using” women, see something different. We see past the drug war and anti-abortion rhetoric. We see beyond the racism and the politics of blame. We see precious human beings who deserve support. These are women whose capacity for love, learning, giving, growing and healing never comes as a surprise to us.

Once such woman is Trena Walker, featured in the video below. I met Ms. Walker many years ago when my family was visiting South Carolina. Ms. Walker babysat for my children. What I remember most about her is that she was a remarkably sensitive and gifted child-care provider.

Her pregnancy and her struggle with addiction, however, could far too easily have become the excuse to lock her up. The ongoing political effort to separate the fetus from the mother in the eyes of the law has not only resulted in the arrest of women who seek abortion, but also scores of pregnant women in South Carolina who have continued their pregnancies to term.

With the aid of a talented advocate, Susan Dunn, Ms. Walker avoided what more than 90 other women in South Carolina experienced when they went to term in spite of a drug problem. These women were turned over to the police by healthcare providers, they were arrested, prosecuted, imprisoned, and then subject to life-long shame and stigmatization. These are women who love their children but who couldn’t overcome an addiction faster than any other person with an addiction, including privileged public figures like Rush Limbaugh and Daryl Strawberry

All of these women are precious, and they all deserve to be treated with dignity, as human beings entitled to treatment that works, and support that will enable them and their children to thrive.